Wild Bill

 

Though the United States Supreme Court is one of the most prestigious institutions in the world, very few truly great men, and no great women, have served on it.  With the exception of the occasional John Marshall, Oliver Wendell Holmes Jr. and Louis Brandeis, the majority of our justices have been workmen-like lawyers who were appointed to the High Court for political reasons.  Most, have been decent people, though Taney was a racist, Brewer a religious bigot and McReynolds an anti-Semite.  Some have lacked the basic intellectual and professional competence to perform their task: Charles Whittaker and Sherman Minton are relatively recent examples of such incompetence.  Most had led boring lives before their appointment and, predictably, wrote boring opinions that have, mercifully, been forgotten by history.  Many have been quite shrewd, a few very smart, and some have been overachievers who rose to the task and influenced American law, and occasionally American life, in significant ways.

 

William O. Douglas was different.  Described by an eminent constitutional historian as “the oddest duck” ever to serve on the Supreme Court, Douglas was a truly brilliant, deeply flawed, never boring, and always controversial public figure.  But was he a great man?  Was he a great justice?

 

Bruce Allen Murphy, the author of this definitively critical biography of “Wild Bill” Douglas, responds with a resounding and carefully documented “no” to the first question. He was an awful human being - - a “bastard” in the opinion of one of his closest friends and confidants.  He cheated on his many wives, mistresses and girlfriends, even occasionally hitting them.  He propositioned the wife of a law clerk, abused his staff mercilessly, once declaring that “law clerks are the lowest form of human life.”  He made few friends on the Supreme Court.  He lied about his background, even his military service.

 

As to whether he was a great justice, the answer is more nuanced: certainly not during his early years on the Court, but perhaps in his later years, when he emerged as an often solitary dissenter, though even then his opinions were so erratic that he has left no real judicial legacy.

 

Although this is a biography of a man who served on the Supreme Court from the age of 40 until his retirement at age 77, it is largely about political intrigue, because, as Murphy documents, Bill Douglas was, at his core, an ambitious politician.  He was constantly running for political office, seeking political appointments and playing politics on the High Court with his other colleagues, some of whom were equally political, though on a smaller scale.

 

From his earliest days as a young law school professor, through his tenure as Chairman of the S.E.C., to the first two decades on the Supreme Court, Douglas had a singular goal: to be President of the United States.  And he came very close to achieving that goal when the dying Franklin Delano Roosevelt included him on a short list of two, to replace Henry Wallace as the Democratic Vice Presidential nominee in 1944, and to become the President designate if and when Roosevelt died while in office.  The other man on the list was, of course, Harry Truman who - - as the result of political machinations - - got the nod and became President on Roosevelt’s death less than a year later. Douglas never got over his disappointment and renewed his desperate quest in 1948 and throughout the 1950’s, while publicly disclaiming any interest in leaving the Supreme Court.

 

Douglas used his positions on the High Court to construct a Presidential platform.  Murphy points to various out-of-character decisions that appear to have been directly influenced by political ambition.  For example, in the 1952 decision in Zorach v. Clauson, Douglas shocked his colleagues by reversing a four year old precedent, which he had joined, to uphold a “released time” program under which public school students were let out early so that they could take religious instruction.  In writing for the majority, Douglas announced that “we are a religious people whose institutions presuppose a supreme being.”  Murphy cites Justice Robert Jackson’s explanation for Douglas’s change of mind:

 

Why had Douglas ruled in this way?  While others speculated about the possible changing of his views toward religion, Justice Jackson thought he saw another, more cynical motive relating to the timing of this decision.  After commenting on the lack of difference that he viewed between this case and McCollum v. Board of Education, yet with two different results from Douglas, he wrote: “Today’s judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law.”  For Jackson, his colleague appeared to be taking this proreligion position because of his thoughts about the need to win the support of a Catholic constituency for a possible run for the presidency later that year.

 

When it became clear, following the election of John F. Kennedy in 1960, that Douglas’s dream had become unattainable, he changed his views once again with regard to separation of church and state, agreeing with Jackson that on matters of religion the “government must be neutral” and that “freedom from religion” was as central to the First Amendment as freedom of religion.  Murphy concludes that by the time Douglas expressed these latter views, in 1961, “he had been freed from the bonds of political ambition, which likely affected his opinion in the Zorach case.” 

 

Even worse than his political pandering to religious constituencies was his unprincipled flip-flop on the Rosenberg case.  Murphy comes close to blaming Douglas for the execution of the Rosenbergs, who had been convicted of being atomic spies for the Soviet Union.  To the public, Douglas emerged from the Rosenberg case as a courageous man of principle, willing to stop an execution he deemed unjust, despite a loud public clammering for blood.  But a review of the private papers of the various justices shows a very different Douglas, voting “with unwonted vehemence” against the Rosenbergs in the secrecy of the conference, while proclaiming publicly with equal vehemence, that they had not received a fair trial.  Douglas was not above playing the petty politics of death with the Rosenbergs.  Justices Jackson and Frankfurter also acted as if the High Court was involved in a game of high stakes poker.  “The S.O.B.s bluff was called”, Jackson “crowed” to Frankfurter, after the two justices forced Douglas’s hand by manipulating their own votes.  The manner by which the Supreme Court handled the Rosenberg case, with votes shifting for personal reasons and with the Chief Justice having improper ex parte contact with the prosecutor, was more reminiscent of a Persian bazaar than of a court of law.  Frankfurter’s characterization of Douglas as cynical, shameless, amoral, and unscrupulous is an example of “it takes one to know one.”

 

There were other instances, as well, of Douglas deciding cases on political, personal and idiosyncratic grounds.  Often he voted against a litigant out of pique against him or his lawyer.  Murphy summarizes Douglas’s early judicial career in the following damning fashion:

 

In anticipation of the day when he would leave the Court, Douglas showed little interest in learning the craft of a career jurist. He had no interest in developing a long-term jurisprudential philosophy.  Instead, he behaved in each case just like he had as a commissioner on the SEC, determining which issues were in his own best interests, battling with his enemies, and taking positions with an eye to his political future.

 

The last decade and a half of Douglas’s career were marked by a restlessness and independence of spirit that permitted him to say what he wanted - - both on and off the Court - - without much concern for what his colleagues, or anyone else for that matter, might think.  He was never more than a part-time justice.  He wrote his opinions off the top of his head, often while sitting on the bench “listening” to arguments in other cases.  And it showed.  He traveled the world writing travel books, biographies and political tracts.

 

Because he was a man of politics rather than of the law, he often saw the “big picture” more clearly than those who viewed the world through the prism of legal technicalities.  Some of his dissenting opinions are prescient, memorable, even brilliant. But they could as easily have been written by an op-ed writer as by a justice.  The difference is that the work of even a great op-ed writer is transient, whereas the work of a great justice is supposed to be enduring.  Because he chose to pay so little attention to the craft of judging, William O. Douglas’s legacy will be like a shooting star, brilliant but fleeting.

 

Alan Dershowitz is a Professor of Law at Harvard.  His latest book is “Why Terrorism Works.”